Service Agreement and Terms of Service

 

Terms and General Conditions of Service Agreement: This Service Agreement ("Agreement") applies to the purchase from Choicewebhost.com Inc. and its affiliates (collectively, "Choicewebhost.com") of all network, registration, consulting, hosting, web design, or other services (collectively, the "Services") selected by Customer either by phone, email, or on the Order Form, as applicable, except that if Customer is also ordering dedicated server services, colocation and/or web site production services, Customer is also required to sign the agreements specific to those services.

Network upgrades. Choicewebhost.com reserves the right to modify its network and facilities used to provide the Services for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced services. Choicewebhost.com shall use reasonable efforts to notify Customer of any planned changes to Choicewebhost.com's network or facilities that may adversely affect the Services provided hereunder.

Term. Unless otherwise specified in writing by an officer of choicewebhost.com, the initial term Agreement shall be for an initial term of 6 months. This Agreement will be automatically renewed, at the end of the Initial Term, on a quarterly basis unless either party provides sixty (60) days written notice to the other of termination of this Agreement prior to the end of the then current term. The Initial Term and all quarterly extensions thereof are collectively referred to herein as the "Term" of this Agreement.

Billing and Payment: During the term of this Agreement, Customer shall pay the fees for the Services that are set forth in the initial order for services and/or domain name(s), as applicable. Such fees may include taxes, fees or assessments by governmental agencies and Choicewebhost.com shall have the right, at any time, to pass through and invoice to Customer any new or increased taxes, fees, assessments or other charges imposed on or required to be collected by Choicewebhost.com by any governmental agency. Invoices are due and payable within 15 days of receipt. All payments shall be made in U.S. currency.

Fees. The fees set forth in the Online Order Form (if provided) or quoted to the Customer are guaranteed during the Initial Term of this Agreement. If Customer continues to receive the Services after the Initial Term without entering into a new agreement or agreement extension, the fees charged after the Initial Term shall be at the then standard Choicewebhost.com rates for such services, without discount, determined quarterly. Choicewebhost may choose to impose, in which Customer will pay, a late payment charge equal to 1.5% (or the highest amount permitted by law, whichever is lower) per month or portion thereof on the outstanding balance of any invoice remaining unpaid thirty (30) days after the date upon which payment is due.

Suspension Or Interruption Of Service For Non-Payment, Leins: In the event Customer's account becomes past due, or is otherwise deemed insecure, Choicewebhost.com may, in its sole discretion, suspend, interrupt or disconnect the Services. In the event of such suspension, interruption or disconnection, Customer will be required to pay all oustanding fees, including applicable restoral charges, and may be required to post a deposit or such other security, as Choicewebhost.com deems necessary in order to resume receiving the Services. In addition, if Choicewebhost.com in its sole discretion, deems Customer to be financially insecure, Choicewebhost.com may execute a lein on any of Customer's equipment or intellectual property under the care of Choicewebhost to secure Choicewebhost's financial interest, or require such other action of Customer, including letters of credit, security deposit(s), restrictions on available credit or other action as Choicewebhost.com may require from time to time regardless of Customer's then-current status or payment history. Failure to satisfy Choicewebhost.com's request for such action within timelines set by Choicewebhost.com may result in immediate termination of service without further notice.

Acceptable Use: Customer shall at all times adhere to the Choicewebhost.com Acceptable Use Policy located at http://www.Choicewebhost.com. as amended from time to time by Choicewebhost.com effective upon posting of the revised policy at the URL. Notwithstanding anything to the contrary contained herein, Choicewebhost.com may immediately take corrective action, including disconnection or discontinuance of any and all Services, or terminate this Agreement in the event of notice of possible violation by Customer of the Choicewebhost.com Acceptable Use Policy. In the event Choicewebhost.com takes corrective action due to a violation of the Choicewebhost.com Acceptable Use Policy, Choicewebhost.com shall not refund to Customer any fees paid in advance of such corrective action.

Cancellation: Customer may terminate this Agreement by giving Choicewebhost.com at least sixty (60) days prior written notice. However, Customer remains obligated to pay all amounts remaining in the Initial Term, and if Choicewebhost.com has purchased equipment on behalf of Customer, including but not limited to circuit, router, server, rackspace, or other equipment or services, Customer remains liable for payments for such equipment, until paid in full. In order to terminate early, Customer's primary contact person on the account should notify Choicewebhost.com of such request to do so. In the case of credit card orders, all termination requests should be signed by Customer's primary contact person on the account who must provide the last four digits of the credit card on file with Choicewebhost.com. However, Choicewebhost.com shall not be liable for unauthorized termination of an account. Any termination by Choicewebhost.com or Customer shall not relieve Customer of any obligations to pay fees accrued prior to such termination. Choicewebhost.com reserves the right to terminate this Agreement without cause prior to the end of the term upon sixty (60) days written notice to Customer.

Technical issues:

IP Address Ownership: Choicewebhost.com shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer by Choicewebhost.com and Choicewebhost.com reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.

Caching: Customer expressly (i) grants to Choicewebhost.com a license to cache the entirety of Customer's Web Site, including content supplied by third parties, hosted by Choicewebhost.com under this Agreement and (ii) agrees that such caching is not an infringement of any of Customer intellectual property rights or any third party's intellectual property rights.

Bandwidth and/or Disk Usage: Customer agrees that bandwidth and/or disk usage shall not exceed the number of megabytes or gigabytes per month for the Services ordered by Customer at the time of initial order. Choicewebhost.com shall monitor the customer's usage. If bandwidth or disk usage exceeds the agreed upon number of megabytes per month, Choicewebhost.com, in its sole discretion, may assess additional standard charges, disconnect or discontinue any and all Services, or terminate this Agreement; however, in most cases, although not required to do so by this Agreement, we will first contact the Customer to discuss the options. In the event that Choicewebhost.com elects to take such action, Customer shall not be entitled to a refund of any fees paid in advance of such corrective action.

Equipment: Choicewebhost.com is acting only as a reseller and/or provider of any hardware, software, circuit and equipment (collectively, the "Equipment") offered under this Agreement that was manufactured by a third party. Choicewebhost.com shall not be responsible for any changes in Service(s) that cause Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Service(s). Any malfunction or manufacturer's defects of Equipment either sold or provided by Choicewebhost.com to Customer or purchased directly by Customer used in connection with the Service(s) will not be deemed a breach of Choicewebhost.com's obligations under this Agreement unless Choicewebhost fails to take any action within 24 hours to remedy such failure after being notified via email by Customer. Any rights or remedies Customer may have regarding the performance or compliance of Equipment are limited to those rights extended to Customer by the manufacturer of such Equipment. Customer is entitled to use any Equipment supplied by Choicewebhost.com only in connection with Customer permitted use of the Service(s). Customer shall not resell, transfer, export or re-export any Equipment, or any technical data derived therefrom, in violation of any applicable United States or foreign law.

Disclaimer of Warranty: Customer acknowledges and agrees that Choicewebhost.com exercises no control over, and accepts no responsibility for, the content of the information passing through Choicewebhost.com's host computers, network hubs and points of presence (the "Choicewebhost.com Network") or the Internet. NEITHER CHOICEWEBHOST.COM, ITS EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS NOR THE LIKE MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT FOR THE SERVICES OR ANY EQUIPMENT CHOICEWEBHOST.COM PROVIDES. NEITHER CHOICEWEBHOST.COM, ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. CHOICEWEBHOST.COM IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CLIENTELE VIA THE SERVICE(S) PROVIDED BY CHOICEWEBHOST.COM.

Indemnification: Customer will indemnify, save harmless, and defend Choicewebhost.com and all directors, officers, employees, and agents of Choicewebhost.com (collectively "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys' fees) arising out of or relating to the use of the Services by Customer, including any violation of the Choicewebhost.com Acceptable Use Policy. Such claims shall include, but shall not be limited to, claims based upon trademark ,service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.

Limitation of Liability: IN NO EVENT SHALL CHOICEWEBHOST.COM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, SUFFERED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF CHOICEWEBHOST.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will Choicewebhost.com's liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by Customer for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose. Some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to Customer. In such jurisdictions, Choicewebhost.com's liability (and the liability of its affiliates, agents, content providers and service providers) shall be limited to the greatest extent permitted by applicable law.

Force Majeure: Choicewebhost.com shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.

Intellectual Property: Customer represents and warrants that Customer's use of the Services shall not infringe the intellectual property or other proprietary rights of Choicewebhost.com or any third party. Customer further acknowledges that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of Choicewebhost.com (collectively, "Choicewebhost.com Intellectual Property") is vested in Choicewebhost.com and/or in Choicewebhost.com's licensors. Unless otherwise specifically provided in this Agreement, Customer shall have no right, title, claims or interest in or to the Choicewebhost.com Intellectual Property. Customer may not copy, modify or translate the Choicewebhost.com Intellectual Property or related documentation, or decompile, disassemble or reverse engineer the Choicewebhost.com Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so. Unless otherwise specifically provided in this Agreement, Customer is not authorized to distribute or to authorize others to distribute the Choicewebhost.com Intellectual Property in any manner without the prior written consent of Choicewebhost.com; provided, however, that nothing in this sentence would preclude Customer from using the Choicewebhost.com Intellectual Property as incorporated in the Services. This paragraph shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which Customer may now have or hereafter acquires in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to Customer.

Confidential Information: Each party acknowledges that, in the course of the performance of this Agreement, it may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of the other party ("Confidential Information"). Except as provided in Choicewebhost.com's Acceptable Use Policy (AUP), each party agrees to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this Agreement. Upon request of either party or on termination or expiration of this Agreement, each party shall return the Confidential Information of the other party then in its possession. Nothing in this Agreement shall prohibit or limit either party's use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in receiving party's possession, as evidenced by receiving party's records; (c) is disclosed to the receiving party without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by the receiving party without any breach of this Agreement; (e) is the subject of a written permission to disclose provided by the disclosing party; or (f) is required by law to be disclosed. Customer further agrees and acknowledges that Choicewebhost.com may disclose Customer account information in accordance with Choicewebhost.com's AUP and Privacy Policy, located at http://www.choicewebhost.com.com/aup.html, as amended from time to time by Choicewebhost.com effective upon posting of the revised policy at the URL.

Customer Data: Customer is responsible for its content residing on Choicewebhost.com servers, and except as otherwise agreed with Choicewebhost.com, for the backup thereof.

Domain Name Registration: A. Registrar Services. Choicewebhost.com provides, for the convenience of Customer, access to domain registration services provided by one or more ICANN-accredited Registrars. If Choicewebhost.com handles registrations, renewals, domain transfers, or other domain-related services for the Customer, it is as a convenience and courtesy extended to the Customer, and is a support service offered without guarantee. Customer recognizes that the responsibility for maintaining current payment for any such domain name rests solely with Customer and not with Choicewebhost.com. As such, Customer should maintain responsiblity for ensuring that registrations are properly handled, contact addresses with the Registrar are maintained current, and that the Registrar has received and processed any required registration, transfer, renewal fees or other requirements to maintain registration. If Choicewebhost handles registration or renewal on Customer's behalf, Customer agrees to pay Choicewebhost.com for the cost of such registrations, and agrees that, since Choicewebhost is simply acting at the request of Customer, any issues, disputes, or conflicts arising with regard to said registration shall be governed by the Domain Name Registration Agreement between the Registrar and Customer, and Choicewebhost.com shall not be a party to such disputes. Because the control of fees and refunds for domain names are within the sole jurisdiction of the Registrar and paid directly by choicewebhost.com to the registrar at the time of registration, all fees collected by choicewebhost.com for domain registration are non-refundable, in whole or in part, even if Customer's domain name registration is suspended, cancelled or transferred prior to the end of Customer's then current registration term. B. Renewal. Customer will be notified when renewal fees are due. Should these fees go unpaid within the time specified in a second notice or reminder regarding renewal, Customer's registration will be cancelled. Customer may request choicewebhost.com to handle renewal for the domain, but responsibility for renewal or failure to renew rests solely with Customer. C. Transfer. Customer will be responsible for all costs and fees associated with the registration of Customer's domain name including, but not limited to, all costs and fees for moving or transferring such domain name. Under no circumstances shall Choicewebhost.com be responsible for this cost. D. Mechanic's Lein. Customer agrees to imposition of an express mechanic's lien against any domain names owned by Customer and/or any domain names hosted by Choicewebhost at Customer's request as a guarantee of payment of any services provided to Customer by Choicewebhost. Choicewebhost may withhold transfer of DNS services, revert any DNS transfers made, or otherwise take actions to enforce the mechanic's lien against Customer without advance notice if Customer is delinquent in payment of any charges to Choicewebhost. Further, Choicewebhost may transfer ownership and/or control of any domain hosted by choicewebhost from customer to Choicewebhost if Customer is seriously delinquent or refuses to pay any amounts due to Choicewebhost. Choicewebhost will reverse any such transfer of ownership if it receives payment in certified funds within 30 days of demand. Otherwise, Customer agrees that transfer of the domain names to Choicewebhost shall constitute partial or full payment of indebtedness to Choicewebhost, based on the lesser of the current value of said domain name(s) or the balance due to Choicewebhost. WITHOUT ANY LIMITATION TO THE FOREGOING, CHOICEWEBHOST.COM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND THAT REGISTRATION OR USE OF A DOMAIN NAME UNDER THIS AGREEMENT WILL PROTECT YOU EITHER FROM CHALLENGES TO YOUR DOMAIN NAME REGISTRATION OR FROM SUSPENSION, CANCELLATION OR TRANSFER OF THE DOMAIN NAME REGISTERED TO YOU.

Governing Law: The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of California. Enforcement of Agreement: In the event it is necessary for Choicewebhost.com to enforce its rights under this agreement, Customer agrees to pay all fees incurred by Choicewebhost.com (including, but not limited to, attorney's fees and collection agency fees. ) Amendment or Waiver: Except as otherwise provided herein, this Agreement may not be amended except upon the written consent of Customer and an officer of Choicewebhost.com. No failure to exercise and no delay in exercising any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or in equity. The waiver by any party of the time for performance of any act or condition hereunder shall not constitute a waiver of the act or condition itself. Assignment and severability: This Agreement shall be binding upon and inure to the benefit of Customer, Choicewebhost.com and our respective successors, and assigns. Customer may not assign this Agreement without the prior written consent of Choicewebhost.com, which consent will not be unreasonably withheld. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect. Notices: All notices to Customer hereunder shall be given at the Billing Address provided on the signature page hereto. All notices to Choicewebhost.com hereunder shall be given to: Choicewebhost.com, PO Box 7995, Berkeley, CA 94707 Any notice hereunder shall be in writing and shall be given by registered, certified or Express mail, or reliable overnight courier addressed to the addresses in this Agreement. Notice shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed and with postage prepaid. Entire agreement: This Agreement, and any other document or agreements specifically identified in this Agreement, supercedes all previous representations, understandings or agreements. Acceptance of services: ACCEPTANCE OF THIS AGREEMENT BY CHOICEWEBHOST.COM MAY BE SUBJECT, IN CHOICEWEBHOST.COM 'S ABSOLUTE DISCRETION, TO SATISFACTORY COMPLETION OF A CREDIT CHECK AND CONTINUED CREDIT WORTHINESS OF CUSTOMER. ACTIVATION OF SERVICE SHALL INDICATE CHOICEWEBHOST.COM 'S ACCEPTANCE OF THIS AGREEMENT. USE OF THE CHOICEWEBHOST.COM NETWORK CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

Age of consent. Customer represents and warrants that Customer has full authority and right to enter into this Agreement. Customer further represents and warrants that Customer is at least 18 years of age.

Risk of Loss, Warranties. YOU AGREE THAT YOUR USE OF ANY OF OUR SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT SUCH SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. CHOICEWEBHOST.COM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CHOICEWEBHOST.COM SPECIFICALLY DENIES ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, MAKES NO WARRANTY THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES CHOICEWEBHOST.COM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.

Severability You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect. In the event that any provision of this Policy shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole.

Non-Agency Nothing contained in this Agreement or the Dispute Policy shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

Entire Agreement You agree that this Agreement, together with the Dispute Policy and the Choicewebhost.com User Agreement, is the complete and exclusive agreement between you and us regarding our services. This Agreement and the Dispute Policy supersede all prior agreements and understandings, whether established by custom, practice, policy or precedent. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an officer of Choicewebhost.com